FEDERAL COURT OF AUSTRALIA

Suleiman v Minister for Immigration & Multicultural Affairs [2001] FCA 752

MIGRATION – application for protection visa – no question of principle.

Migration Act 1958 (Cth)ss 476(1)(a), (e), (g) and 430(1)(c)

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 considered

Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 referred to

Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to

SULEIMAN OMAR SULEIMAN v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 214 of 2000

LEE, HILL AND EMMETT JJ

30 May 2001

PERTH

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant, Suleiman Omar Suleiman, appeals against the decision of a Judge of this Court, Nicholson J, dismissing his application for judicial review under s 476 of the Migration Act 1958 (Cth) (“the Act”) of a decision of the Refugee Review Tribunal (“the Tribunal”) which had affirmed a decision of the respondent, Minister for Immigration and Multicultural affairs, not to grant to him a protection visa.

2                     The applicant at first instance sought to impugn the decision on two grounds.  The first, based upon s 476(1)(a) of the Act, alleged that procedures required to be observed had not been observed by the Tribunal.  The relevant procedure said to be prescribed by the Act was the failure of the Tribunal to make a finding or give reasons in respect of a material fact, namely, whether the appellant had a well-founded fear of persecution arising from his membership of a particular social group, that being coastal persons in Kenya.  The second, not raised, however, by the appellant in his grounds of appeal before us, was based upon s 476(1)(g) of the Act.  It is unnecessary to consider this second matter further.

3                     Both grounds of review were rejected by the learned primary Judge.  The appellant appeals the decision of the learned primary Judge in respect of the first ground but seeks also to raise a ground of appeal not raised before the primary Judge based on s 476(1)(e) of the Act, namely, that the Tribunal had made a mistake of law by applying the wrong test when considering whether the appellant had a well-founded fear of persecution for reason of political opinion.  The wrong test was, it is said, that such a ground could not apply unless the person seeking to be found to be a “refugee” within the definition contained in the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (compendiously referred to as “the Convention”), was a “serious” political activist, when no such standard applied.

4                     The second ground of appeal was, as we have said, not as such included in the grounds of review contained in the application filed in the Court as supplemented at the hearing at first instance.  Accordingly, the appellant not only required leave to amend his grounds of appeal but also to amend his application for review.  The Minister made no objection to leave being granted to amend the application and the grounds of appeal to permit the appellant to raise on appeal the submission that the Tribunal had made an error of law.  The Court granted leave accordingly.

The Proceedings Before The Tribunal And The Tribunal’s Reasons

5                     The appellant was not, it would seem, legally represented before the Tribunal although he had the assistance of an interpreter.  He was, however, represented by pro bono counsel before the learned primary Judge and before the Full Court.  While we do not in any way seek to criticise the way the matter was brought to trial before the learned primary Judge, no attempt was made to file in the Court the transcript of the proceedings before the Tribunal.  Accordingly, the case which the appellant sought to put to the Tribunal can be gleaned only from the reasons for decision of the Tribunal and other material contained in the appeal papers before us.

6                     It is not suggested that in any way these reasons fail to show what was sought to be argued.  Indeed the appellant filed with the Tribunal written submissions setting out the case which he sought to make and these submissions are summarised in the Tribunal’s reasons.  The judgment appealed from discusses the Tribunal’s reasons fully as follows:

“The Tribunal’s reasons state that the applicant’s initial claims were that he had left his country of nationality because of corruption, absence of human rights and danger from fighting.  In a statutory declaration he had claimed he was a Kenyan national who had falsely assumed a Somali identity.  He had grown up in Mombassa. He claimed his father was a political leader of the Shirikisho Party which was an opposition party to the Kanu Party in power.  On 13 August 1997 one of the Shirikisho Party meetings was interrupted; the Kanu office and the Likoni police station office was set on fire because of the leadership of his father in the Shirikisho Party.  The applicant did not go home and went to Somalia.  He claimed he feared if he returned to Kenya he would be prosecuted without trial and tortured because they knew he was his father’s son and a guerilla throwing over the government.

At a subsequent interview he said that his twin brother had been arrested at the same meeting; neither he nor his father had returned to the family home and he had left Kenya in May 1998.

At the hearing the applicant again said he had left Kenya in May 1998.  He had spent most of his life in Mombassa and Likoni, a short distance away.  He had claimed to have been involved in politics since he was aged 19 although never a member of a political party.  He had not voted in the election in 1997 because he had been imprisoned at that time.  He claimed to have been arrested on 11 August 1997 but released by people two days later.  The applicant was of the Digo tribe and was renting a house to some Kenyan immigrants from Mombassa.  On 13 August 1997 it was announced tribal immigrants living in Mombassa who were not of the Digo tribe would be punished unless they left the area.  He had therefore told the tenants to get out.  They complained to the police who arrested the applicant for breaking Kenyan law by locking out a tenant.

At the hearing the applicant said he would expect difficulties upon return to Kenya because he ran from prison and joined the group who released him; his mother was arrested; he had left Kenya illegally; he might face punishment from his tribe because he left Kenya instead of helping the tribe; and police might ask him about the disappearance of 42 guns from the police station at the time he was released from jail.

The Applicant said that he could not relocate to another part of Kenya because he could not live away from his tribe as he would have no one to protect him.

After reviewing country information the Tribunal made the following findings:-

(1)       The applicant is a Kenyan national.

(2)       In and around August 1997 there was serious trouble in Mombassa and Likoni.

(3)       The applicant was arrested as he claimed because he broke the law in Kenya by locking out tenants from the home he was renting to them.  His arrest was a direct response to the fact that he broke the Kenyan law.

(4)       The applicant fled arrest from a law of general application.  There is no evidence to suggest that the general application is enforced selectively or for a selective purpose and that such selectivity can be attributed to a Convention purpose.

(5)       The Tribunal was not satisfied on the basis of the evidence before it that the arrest of the applicant’s mother was related to any Convention reason.

(6)       There was no evidence to suggest the applicant is a serious political activist.

(7)       The applicant’s father encountered difficulties but there was insufficient evidence for a finding to be made that it is related to politics or that the applicant would be implicated in any way in his father’s activity.

(8)       The applicant has not produced evidence to indicate he would face persecution for a Convention reason upon return to Kenya.  The applicant’s fears are related to criminal matters and not Convention related.  He has no well-founded fear for any Convention reason as a result of his escape from prison.

(9)       There was no evidence to suggest the applicant would expect difficulties on return to Kenya because he had left there illegally.

(10)     The Tribunal was not satisfied the applicant will face persecutory treatment from his tribe or that the police would not be prepared to protect him should this occur.

(11)     The applicant has sufficient skills to relocate within Kenya should he consider it necessary to do so.”

The Decision Appealed From In Relation To The s 430 Submission

7                     It was common ground before the learned primary Judge that the Tribunal was under an obligation to make findings on questions of fact central to the case raised by the material and evidence before it.  Failure to do so, it was agreed, constituted a ground of review under s 476(1)(a) of the Act:  Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 481.  It was submitted, however, that that material raised for decision the question whether the appellant was a member of a particular social group of “coastal people” and thence a question whether he had a well-founded fear of persecution based upon his membership of that particular social group.

8                     The learned primary Judge noted that there was material before the Tribunal (it is referred to in its reasons) that on the night of 18 August 1997 security forces shot dead a Mr Makuti of Kanu as he was leading a rampaging gang of 150 youths seeking up-country Kenyans and murdering them.  Police interrogation of the suspects was said to reveal that the gang behind the violence had been recruited, armed and trained in the coastal hinterland with orders to keep the coast safe for Kanu.  There was further country material dated 18 September 1997 which reported that unrest in Kenya's coastal province had forced some 100 Kenyans to flee to the Tanzanian archipelago of Zanzibar.  There were allegations that the government had failed to stop the escalating massacres of citizens and destruction of property, restore security and peace and bring back life to normal.

9                     It was submitted before his Honour that this material was evidence that the ruling party in Kenya had inspired ethnic troubles in the coastal region generally with the sole purpose of keeping the government in office.  So it was submitted that where there was “mob violence”, there was a real chance that those who happened to be where that violence took place, including the appellant, would suffer harm or injury constituting persecution in the sense used in the Convention.  Put another way, that harm or injury would give rise to a well- founded fear of persecution by reason of membership of a particular social group of “coastal people”.

10                  For the Minister, it was submitted to his Honour, as his Honour’s judgment records, that the decision in relation to the applicant did not depend in practical terms on the issue of his membership of a particular social group so that the question was immaterial.  Alternatively it was submitted that even if it were, material evidence that the applicant was a resident of the coastal region would not be evidence that there was a group sufficiently set aside from society at large to constitute a particular social group in the sense used by Dawson J in Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 at 241.  Further, it was submitted that neither the arrest nor the release could arguably be said to have been as a consequence of the applicant’s membership of the particular social group contended for.

11                  His Honour rejected the submissions made by the appellant before him.  His Honour noted that this was not a case in which the appellant chose to make material the issue whether any fear of persecution he had arose by reason of his being a member of a particular social group of “coastal persons”.  His claims before the Tribunal had not raised in a practical way an association between his possible identity as a “coastal person” and his fear of persecution.  His Honour said:

“In its reasons the Tribunal said that the Shirikisho political party had no particular ideology; was a regionally based party seen as representing certain ethnic grouping; it could be described as a coastal national party which promotes the interest of coastal people and is perceived as tapping into the general resentment of coastal people against up-country people who have settled on the coast and benefited from the economic opportunities in the coastal area.  However, it also said this sentiment was shared by other parties, notably Kanu, the ruling party, which sought at the time of the election to exploit the sentiment on the coast for its political ends.  Further, there is no suggestion that the Shirikisho party itself was involved in organising or recruiting perpetrators of the violence.  Indeed it was not registered until November 1997 and could not have played any part in the violence which took place in August 1997.

If the Tribunal was entitled to its conclusion that the applicant was arrested because of non-compliance with a law of general application (see below) his membership of the alleged particular social group would not be material as it could not be the source of the conduct the applicant claimed was the foundation of his well-founded fear.

In all those circumstances I do not consider the issue of whether the applicant was a member of a particular social group of coastal people was raised in a practical way.  It follows the Tribunal did not fail to make findings on this aspect in contravention of s 430.”

The Reasons On Appeal Relating To The s 430 Submission

12                  It is clear from the decision of the Full Court in Singh that the question whether a fact is material may in some, perhaps many, cases be influenced or determined by the way the Tribunal has approached the issue.  However, it is also clear that the question whether a fact is material will not necessarily depend upon the way an applicant may choose to present the issue which the applicant perceives to arise for decision.  The majority of the Full Court comprising Black CJ, Sundberg, Katz and Hely JJ, said at 481:

“Ordinarily, materiality is an objective concept.  If the RRT fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material.” 

13                  Prior to Singh the question had arisen whether the materiality of a fact depended upon the manner in which the case was presented by an applicant or whether, as held by a Full Court of this Court in Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425, it depended upon the facts on which the Act expressly or impliedly required the decision-maker to make findings when making the decision or on which the Act expressly or impliedly required findings not to be made when making the decision.

14                  The majority in Xu were of the view, disapproved in Singh, that s 430 only obliged the Tribunal to make findings on the ultimate facts, that is to say those that were an essential preliminary to reaching a conclusion.  In rejecting this view their Honours said in Singh at page 482:

“We do not accept that the material facts referred to in s 430(1)(c) are confined to the facts the statute requires to be decided.  Obviously they include those facts, but whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for a decision.

…

Thus, whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings ... A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.”

15                  When one comes to the present case, it is clear that the appellant never asserted that his claim to be considered as a refugee depended upon his membership of a particular social group.  In a particular case that may not be determinative in concluding whether the existence of a particular social group was made out.  But, it must be recalled that for an applicant to establish he is a refugee within the meaning of the Convention it is necessary not merely that there be objectively a fear of persecution by reason of membership of a particular social group, but that the applicant actually had that fear.

16                  It is hard to imagine how the question of the existence of a particular social group could arise unless there is some evidence that the applicant for a protection visa had a subjective fear of persecution on the grounds of membership of that social group.  Subjective fear would, at least ordinarily, be established if the applicant said he or she had that fear and his evidence was accepted.  Perhaps it could also be inferred in a particular case.  But, there was nothing before the Tribunal at all to suggest that the appellant here had a fear of persecution (harm or injury) by reason that he was a member of a class of “coastal people”, even assuming that such a class was capable of constituting a particular social group.

17                  There was nothing in the stowaway interview or the statutory declaration made by the appellant and filed with the Tribunal which suggested that the appellant in any way feared persecution by reason that he was a “coastal person”. Nor was there anything in the submission made on his behalf to the Tribunal by his solicitor.  His claim was fear of persecution or torture on his return because of his relationship with his father.  The delegate of the Minister who made the decision ultimately referred to the Tribunal noted in the material which was before the Tribunal that there was no claim of persecution by reason of membership of a particular social group.  Nothing in the Tribunal's reasons suggested any evidence that, because the appellant was a coastal person, he had a ground for a subjective fear of persecution.

18                  It must follow in the present case that whether there did exist within the meaning of the Convention a social group comprised of “coastal persons” or, indeed, whether any fear the appellant had because of membership of that particular social group would be well founded, were not issues which could arise unless there was evidence upon which the Tribunal could find directly or by inference that the appellant had a subjective fear of persecution for that reason.  Accordingly, there could be no failure to make findings on either of these matters as material facts.

The Ground Of Error Of Law

19                  The submission that the Tribunal erred in law is said to arise out of the following passage in the Tribunal’s reasons:

“The applicant claims that he fears that if he returns to Kenya they "will know that I am my father's son and a guerilla throwing over the government."  However there is no evidence to suggest the applicant is a serious political activist.  I note he has never been a member of a political party in Kenya.  He has had no involvement in politics since his departure form (sic) Kenya.  And he was involved in a very low level of political activity in Kenya.  I am satisfied that if his father encountered difficulties there is insufficient evidence for me to make a finding that this is related t (sic) politics or that the applicant will be implicated in any way in his father's activity.  Despite the ongoing political and ethnic tensions in Kenya the applicant has produced no evidence to indicate that he would face persecution for a convention reason upon return to Kenya.”

20                  It is important to repeat the admonition of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 referring, with approval, to the decision of a Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 that judicial review of administrative decision-making is not to be approached with “an eye keenly attuned to the perception of error”.  That is precisely what the appellant’s submission would seek to do. 

21                  A fair reading of what is said in the passage quoted does not suggest that the Tribunal has imposed some erroneous test requiring the applicant for a protection visa claiming to fear persecution for political reasons to be a serious political activist.  What the passage quoted suggests fairly is merely that the evidence before the Tribunal did not suggest that the appellant would be of interest to the authorities because he personally had no political sympathies and his father's activities would not be regarded by the authorities as of such significance as would reflect on the appellant.  It follows that the appeal should be dismissed with costs.

22                  The order of the Court will be that the appeal be dismissed with costs.

Associate:

Dated:                          June 2001